No Doubt v. Activision Publ., Inc.

No Doubt v. Activision Publ., Inc.

Opinion

 [*1140]  ORDER GRANTING PLAINTIFF'S EX PARTE APPLICATION TO REMAND [8] AND REMANDING CASE TO LOS ANGELES COUNTY SUPERIOR COURT

[JS-6]

I. Introduction

Plaintiff filed a Complaint against Defendant in state court. Defendant removed the case to federal court, arguing that Plaintiff's Complaint is preempted by the Copyright Act. Plaintiff filed an ex parte application to remand the case to state court. For the following reasons, the Court grants Plaintiff's application and remands the case to state court.

II. Facts

The following facts are taken from Plaintiff's complaint, which for present purposes must be taken as true. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); see also Doe v. Holy See, 557 F.3d 1066, 1073 (9th Cir. 2009).

Plaintiff No Doubt is a music group. Defendant Activision Publishing,  [**2] Inc. is a video game manufacturer. On May 21, 2009, Plaintiff and Defendant entered into a contract whereby Plaintiff licensed Defendant a specific, limited and restricted use of Plaintiff's name, likeness, and musical works in Defendant's new video game, Band Hero. Under the agreement, Plaintiff permitted Defendant to create animated character representations, or "avatars," of Plaintiff's likeness for the limited purpose of allowing the characters to perform three of Plaintiff's own musical works. Plaintiff asserts that the Agreement contained express limitations on Defendant's uses of Plaintiff's likeness, and that any other use of Plaintiff's likeness would be subject to Plaintiff's approval.

According to the Complaint, Defendant created in Band Hero the ability to have lifelike embodiments of Plaintiff and its individual band members sing, dance and perform over sixty songs that were neither contracted for nor approved of, and have never been performed, by Plaintiff. Plaintiff asserts Defendant hired actors to impersonate Plaintiff and enable the No Doubt avatar characters to perform these sixty plus unapproved songs.

The video game includes a Character Manipulation Feature that  [**3] allows game-players to manipulate each character's likeness to engage in unapproved acts with other characters included in the game. This feature allows users to cause members of No Doubt to perform vocally as soloists without their band members, including having male members sing with female voices. Plaintiff argues that the Agreement only allowed the use of Plaintiff's name and likeness as a collective  [*1141]  group, and not as solo artists. Plaintiff further asserts that it never agreed to allow the use of its name and likeness for the Character Manipulation Feature of Band Hero.

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